Divorce Mediation

This blog will henceforth be written on a Holiday-to-Holiday basis. The article below has an important reference to Passover, and it is therefore re-published here.

Mediation, Marriage, Divorce, Agunah
By Martin Rosenfeld
Posted December 1, 2008 – 11:31am

Rabbi Rosenfeld served for many years as a pulpit rabbi. He currently maintains a
practice in Divorce Mediation, and operates a website glattyashar.com that gives pro bono
service to those seeking a Get. This article appears in Issue 2 of Conversations, the
journal of the Institute for Jewish Ideas and Ideals.

The late Rabbi Harry Wohlberg taught Midrash at Yeshiva University to generations of
Semikha students. He asked his students on one occasion to explain why the Talmud states
that the Mizbeah (altar of the Temple) itself cries for a couple going through a divorce
proceeding. Why was this metaphor of a “crying altar” used? Rabbi Wohlberg
explained that the altar was the scene of bloody activity on a daily basis, it had become
de-sensitized to blood and gore; yet it could not tolerate the scene of a couple seeking
to end their marital relationship.

Divorce takes its toll on many individuals, in a ripple effect. It is no wonder that
divorce is frequently listed among the five biggest traumas in the adult experience.
Unfortunately, its negative impact affects multiple generations, with children often the
greatest victims of all.

It is estimated that more than half of the marriages in the U.S. will end in divorce. I
have not seen comparable statistics for Jewish marriages but we know that the rate of
divorce is growing significantly. In my post-rabbinic career, I have chosen to work in
the field of divorce as a Divorce Mediator. I find this work to be both satisfying and
greatly needed. I can think of no situation, with the possible exception of custody
disputes, where mediation is not far more beneficial and therapeutic that that which can
be found in the traditional adversarial system of battling attorneys.

Mediation, unlike litigation, fully involves the couple in an open discussion and
negotiation concerning the conditions of the divorce settlement. This discussion is
facilitated by a mediator who serves as a neutral party, assisting the couple in reaching
an agreement. Mediation is an optimistic profession in that believes that adults, even
when they possess variant interest and needs, can reach an accord that will be fair and
balanced. Mediation utilizes skills that the couple will need to use even after the
divorce if they share children. Mediation allows the couple to close the door on their
marriage, but not slam it. It is an example of what constructive communication can yield.

There is a Hassidic insight that defines Pessah as the combination of two words: Peh Sah.
“The mouth speaks”. We show our most basic humanity when we become free enough
to state opinions, wants and needs. Through the medium of speech we can define problems
and we can then begin to seek solutions. The ability of a couple, even in the midst of
divorce, to seek solutions rather than blame, lies at the heart of mediation. More
importantly, mediation trains the couple in the power of working collaboratively toward a
shard goal. The need for such positive and focused conversation can serve us on the
communal level as well.

A question that occurs to me often is: why does our society expect a couple to marry as
Benei Torah and yet allow them (frequently) to divorce as battle-hardened mercenaries?
Judaic values are often observed only in their breach when many couples negotiate their
divorce settlement. This situation is aggravated exponentially when the rancor becomes so
great that the Get (religious divorce) becomes a bargaining chip. It is, at times, to our
chagrin, withheld (or not accepted) by a recalcitrant spouse. I would like to propose in
an outline form some suggestions that deal with Jewish divorce and the painful status of
the Agunah. (Additional thoughts may be found at my website, www.glattyashar.com). Many
of these thoughts derive from the model of mediation where finger-pointing is rejected in
favor of constructive searches for solutions and frank discussion. However, one caveat is
in order. In order to discuss Jewish divorce, we first need to discuss Jewish marriage.
In like manner, in order to discuss Agunah concerns, we must communally first address
Jewish marriage as it currently exists.

Social critics have often commented on how society tests for driving competence before it
issues a motor vehicle license, but does not do so before it issues a marriage license.
How do we prepare our future generation for married life in a society which accepts
“disposable” relationships as a cardinal principle of romantic faith? I believe
we need to apply our education paradigms toward martial preparation and counseling. Many
communities have begun projects, often called “Hupah Project” “Shalom
Project” etc. In some communities, such programs involve an interface between Jewish
Family Services and the rabbinic community. The purpose of these programs is to offer
sessions with the newly-engaged couples in order to teach communication skills, introduce
halakhic norms, and offer guidance on issues that will need to be negotiated in marital
life. For many couples, this will represent their first opportunity to meet community
professionals in the religious sphere as well as the mental health arena. The group
setting offers the couple a chance to listen and also a chance to dialogue. They are
introduced to potential challenges and also strategies for a successful resolution of the
same. The couple learns to listen, to talk, and to problem-solve; these are qualities
that serve us all well in our daily exchanges.

I have seen in recent years a dramatic growth of mental health professionals who are
well-versed in both Jewish law and social theory and practice. It is no longer unusual to
see a young man/woman go through many years of Yeshiva education and then choose to serve
her/his community by electing to become a mental health practitioner. The rabbinate and
the mental health professionals need to work hand-in-hand and cross-refer when
appropriate in this area. It would be a worthy project to have a national roster of such
professionals whose expertise in the areas of marital life and Shalom Bayit make them a
natural resource for married couples. I know of no organization that is limited to those
who specialize in issues affecting married life but I think the need for such a group is
self-evident.

The role of Rashei Yeshiva has been discussed and debated in multiple journal entries. I
will only offer the observation that the influence of these leaders among our religious
young adults is great. I do believe that their role in stressing the need to learn proper
communication skills would be most valuable. These rabbinic leaders should encourage
students to seek professional intervention when this is called for. Their lectures should
stress the need for positive communication and the need to seek solutions in a spirit of
collaboration. Finally, these leaders, and others, when confronting the reality of the
dissolution of a marriage, should encourage the positive method of mediation rather than
the divisive alternative of lengthy confrontation and litigation. (As an aside, mediated
divorces have been projected as representing 20% of the cost of a litigated divorce. The
money saving is, however, far from being the real benefit of such an approach.). We need,
in short, to teach the skills for a positive home life, reinforce them, give hizzuk where
needed and set a tone for an integration of Jewish values coupled with insights from
contemporary social thought. We also need to remember the advice that “Values are
not taught, they are caught”.

Preparation for married life needs to be a prime focus of our educational and communal
curricula. We must ask how are we to train our students for the life skills they will
need for successful married life. Yemei Iyun on such topics as communication skills,
pre-nuptial agreements, Jewish sexuality need to be more widespread. More importantly, we
need to ask what objectives we seek, and how to we plan to get there. It might be
appropriate to recall the thought that “If you don’t know where you are going, all
roads will take you there”. I daresay that we know where we are going. My question
is directed at the query as to whether we know how to get there.

There is a story about a young child who saw some starfish awash on the seashore. She
took them one at a time and hurled them back into the sea. She was asked: “There are
so many starfish here, do you think you can possibly help them all?” She answered:
“I don’t know, but I just made a difference in the life of the one I sent back to
the ocean”. I do not have a solution which will remedy the “Agunah
problem”. I do believe however, that like the girl in the story, we need to focus
attention on the micro as much as the macro, i.e. why do we have an Agunah problem, and
can we make a difference?”

A few years ago, attorney Joseph Rackman, wrote an article about a registry that would
contain the names of recalcitrant spouses. Their respective communities would put the
appropriate pressure on such individuals to bring about the desired effect of effecting
the granting of Gittin. I met with attorney Rackman to discuss his proposal and made a
suggestion. Should we not first meet with each spouse who was acting in such a defiant
fashion and explore what was sparking the unacceptable behavior? It is easy to accuse all
recalcitrant spouses of being “money-hungry” and manipulative. However, this
may not have been the original trigger. There may have been a call for “someone to
listen” that was never heeded. There may have been a negative experience with a Beth
Din. There may have been pre-existing threats from the opposing spouse. Idle legal
threats may have caused a violent reaction. We will never know unless we try to reach out
and communicate. Our system is not fool-proof and neither are our appointed
representatives. In our zeal to help one spouse (as sacred as that work is) we dare not
demonize the other without first trying to hear from them. Communal pressure ultimately
is quite important. But let us not forget the need to first enter into conversation with
those who flaunt our halakhic and ethical norms.

One of the organizations working with this issue, ORA, has offered couples pro bono
mediation when there is a hope that communication can be productive. Even if we fail in
our attempts to reach out to these individuals, we will gain a wealth of insight into how
our community structure has “broken down” and why we have failed to impress
some community members with the thought that “Her ways are ways of peace”.

We have much to gain by offering mediation assistance to couples who are unable to find
the proper manner to dissolve their marriage and its attendant issues. I do not believe
we have made the institution of marriage a communal priority in terms of education ,
outreach and financial support. To cite one example, the Catholic groups have family
institutions, seminars, lecture bureaus, etc. Prominent Church leaders head such efforts
and have even become national figures. What have we done in our community to try to
emulate such work? (On a personal note, I have communicated with 5 major Jewish
organizations, in order to volunteer to try to initiate some of the proposals outlined
herein. Only 1 of the 5 actually responded.) Marital life is probably the most vital
Jewish institution to ensure continuity of our value system. What have we invested in
such an undertaking? Where are our communal structures?

If we felt the pressing need, we could convene a meeting on Agunah and divorce. Papers
could be presented, issues debated, and dialogue begun. With every year that we fail to
do something of this nature, we miss an opportunity that is desperately needed. Indeed
our national conferences always have the occasional session on issues of Jewish marriage.
But don’t we need and deserve more? We have organizations for Agunah. Do we have similar
organizations that deal with Jewish marriage, Jewish divorce, and the halakhic norms that
surround them?

To the above, I would add the need for blogs so that community members with specific
needs have a place to go for direction and inspiration. I maintain such a website for
those who seek a Get but do not know where to turn. A great Kiruv opportunity exists if
we make the effort to explain to the non-Orthodox what a Get entails, help them find a
proper Beth Din, and organize volunteers to help them through their Get process. We shout
about the tragedy of Agunah and yet we allow the non-Orthodox to be unaware of the Get
process, thus dooming future generations to our community’s ultimate rejection; i.e.
mamzerut. Surely there is more work that can engage us in this area.

To succed as Torah Jews, the Brisker Rav stated, we need to be business-like. We need to
have a mission statement, objectives, and resources, in addition to moral commitment.
This is the regimen we would undertake for our business and this must be our charge as
Torah leaders. There is work to be done in the area of Ishut, and all that the term
entails. We all have ideas and strategies. Perhaps the time for “Peh Sah” has
arrived. We need to dialogue, talk, and listen. We need to work collaboratively. If we
apply such an approach, the challenges presented in the areas of Jewish Marriage, Jewish
Divorce, and Agunah, we will be worthy of Bilaam’s coerced admission: “How goodly
are your tents Jacob”. I can think of no greater praise, or goal, than that.